Decision No. 12,953

Appeal of JOHN GARVEY from action of the Board of Education of the Levittown Union Free School District and Herman Sirois, superintendent, concerning a clause in the superintendent's employment contract.

SOBOL, Commissioner.--Petitioner requests an order declaring null and void a clause in the employment contract between superintendent Sirois and respondent board. The appeal must be dismissed.

Petitioner is a member of the board of education of the Levittown Union Free School District. In his papers, which are often rambling and incomprehensible, he refers to many topics including illegal search and seizure, a prior decision of the Commissioner of Education, the appointment of an assistant superintendent and the fact that his wife was once a full-time employee of the school district. Petitioner offers no explanation as to how those topics relate to this appeal.

As I can best determine, petitioner seems to be challenging paragraph 7 of respondent Sirois' employment contract. That paragraph provides:

7. MUTUALITY CLAUSE

The SUPERINTENDENT shall maintain professional decorum and behave toward the DISTRICT (Board of Education, individually and collectively) in a respectful manner at all times publicly and privately; shall limit any criticism of the Board or its members to executive session meetings of the Board of Education and/or to private meetings with individual Board members; and shall, in word and action, demonstrate cooperation with and faithful representation of the decisions and the intents of the Board of Education

Board of Education members shall maintain professional decorum and behave toward the SUPERINTENDENT, the school district and its personnel and programs in a respectful manner at all times, publicly and privately. Board of Education members, acting in such capacity, shall limit any criticism of the SUPERINTENDENT, the school district and its personnel and programs to executive session meetings of the Board of Education and/or to private meetings with the SUPERINTENDENT. Board of Education members shall, in word and action, demonstrate cooperation with and support of the decisions and intents of the Board of Education and the SUPERINTENDENT.

Board of Education members shall report to the SUPERINTENDENT the substance of any discussions or conversations with and comments made to or received from any district resident or district employee regarding school district affairs within two days of any such interaction.

Any requests for information by any Board of Education member shall be made through the SUPERINTENDENT and any such information provided through the SUPERINTENDENT pursuant to such request shall be provided to all Board of Education members.

Petitioner concedes that personal criticism of the superintendent or district personnel should be restricted to executive session, as required by paragraph 7 of the contract. However, petitioner maintains that paragraph 7 also prohibits public criticism of board actions, programs or procedures. Petitioner further maintains that such a restriction violates his right of free speech and interferes with his duties as a board member.

The Commissioner of Education will not render advisory opinions or decide issues prior to the time such issues become justiciable (Matter of Rhodes, 21 Ed Dept Rep 632; Matter of DiPeri, 18 id. 262; Matter of Wieland, 15 id. 284). In light of respondent's concession that criticism of board actions, programs or procedures should be discussed in public and is not prohibited by paragraph 7 of the superintendent's contract, it is clear that no justiciable issue exists in connection with paragraph 7. Since there is no dispute between the parties on this issue, it is dismissed.

I have reviewed petitioner's other contentions and find them without merit.